How much is enough?
On May 15th we wrote that the test for a hostile work environment is, in sum, that harassing acts or epithets must either be severe or pervasive, and we asked “how many times an employee must endure a crude and offensive racial or other epithet for the situation to become a hostile work environment?”
On May 24, 2013, we wrote that a federal appeals court in Washington, DC held that a single use of the “N-word” was enough to make out a hostile work environment because it is a racial epithet that is “deeply offensive.” The Court stated that “perhaps no single act can more quickly alter the conditions of employment” than “the use of an unambiguously racial epithet such as ‘nigger’ by a supervisor.”
But we also noted that, as reported by Law360, a different federal appeals court, the Fourth Circuit out of Virginia, ruled that an employee’s calling the African-American plaintiff a “porch monkey” on two occasions did not constitute a hostile work environment.
We wondered: “Should the courts craft a bright-line test to determine when a crude and offensive remark is severe enough by itself to constitute a hostile work environment? Or perhaps a sliding scale of severity, giving crude and offensive remarks different numerical values on the “crude and offensive” scale?”
And given a Nevada case (which we wrote about on April 3, 2013), where a female employee was subjected to numerous “crude and offensive remarks” but on “only about four occasions,” which was held not to have created a hostile work envirnment, we asked “Do we conclude that race and gender cases are treated differently when it comes to the number of times an offensive remark is made? Or when it comes to the nature or offensiveness of the comments made? Or is it just that the courts simply have two different tolerance levels for what is crude, offensive, or severe.
A Missouri state judge seems to have a higher tolerance than many of our readers for the use of the N-word and other racial and sexual epithets, along with a sexual assault — all in the same case. In a new decision on a summary judgment motion, a woman employed as a “route phlebotomist” by a company which provides laboratory services, including taking blood, alleged that she was sexually and racially harassed by a patient, and sued the employer for hostile work environment. (We blogged before that a hostile work environment can be created in any way, by any means, and by anybody — even a patient — if the employer does not address an employee complaint that the workplace is hostile).
The Missouri court, construing the Missouri Human Rights Act (“MHRA”), held that she failed to make out a hostile work environment because she “only cites to six incidents over a period of eleven days at most—half of which did not include any sexual or racial remarks.”
But oh, those incidents.
According to the Court, the following incidents taken together were neither pervasive or extreme enough to create a hostile work environment:
September 10, 2012 — while the employee was beginning to draw the patient’s blood, the patient “touched her between her legs, grabbed her crotch, and grabbed the back of her head and tried to kiss her.
September 11, 2012 – the patient called the employee “just a bunch [sic] of bitches and nigger bitches.”
A few days later – the patient “said to another patient (but loud enough for [the employee] to hear) “this bitch is getting me put out.’”
Some time between September 10, 2012, and September 21, 2012 — the patient said to her as she was about to draw his roommate’s blood, “What the fuck are you doing over here?”
September 21, 2012 — while the employee was waiting for the elevator, the patient said to her, “they’re putting me out, bitch. I’m going to get you.”
Distinguishing this from other state and federal cases in an unusually detailed and graphic way (which Freud might find interesting), the Court ruled: “Viewing the facts most favorably to [the employee], the Court finds that [she] has failed to establish a prima facie case against [the employer] for a hostile work environment based on sexual or racial harassment. … Following the September 10, 2012 incident, [the employee] only cites to six incidents over a period of eleven days at most-half of which did not include any sexual or racial remarks (emphasis added).”
So, how do we square all of these decisions? And what do these decisions say about the current state of the workplace and of the employment discrimination laws?
And once again we ask: How many times must an employee endure a sexual assault, plus crude and offensive racial and sexual epithets (including the N-word) for the situation to be considered a hostile work environment?